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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

JEREMY TODD ANDERSON, 

 Appellant, 

 v. 

STATE OF ALASKA, 

 Appellee. 

Court of Appeals No. A-13676 

rial Court No. 3KN-14-00665 CR

O P I N I O N 

No. 2774 — March 29, 2024 

T

Appeal from the Superior Court, Third Judicial District, Kenai, 

Jennifer K. Wells, Judge. 

Appearances: Jane B. Martinez, Law Office of Jane B. 

Martinez, LLC, under contract with the Public Defender 

Agency, and Samantha Cherot, Public Defender, Anchorage, 

for the Appellant. Madison M. Mitchell, Assistant Attorney 

General, Office of Criminal Appeals, Anchorage, and Treg R. 

Taylor, Attorney General, Juneau, for the Appellee. 

Before: Allard, Chief Judge, and Wollenberg and Harbison, 

Judges. 

Judge ALLARD. 

This case is before us a second time, now on Jeremy Todd Anderson’s 

direct appeal of his sentence. Pursuant to a plea agreement with the State, Anderson 
– 2 – 2774 

was convicted of one consolidated count of second-degree sexual abuse of a minor.1 He 

now appeals various aspects of his sentence — namely the sentencing court’s finding 

that his offense constitutes a “crime involving domestic violence” and the court’s 

imposition of several probation conditions. For the reasons discussed in this appeal, we 

affirm the superior court’s designation of Anderson’s offense as a “crime involving 

domestic violence,” but we remand for reconsideration of several probation conditions.

Background facts and proceedings

On May 8, 2014, fifteen-year-old K.H. reported to one of her high school 

teachers that she had been having an ongoing sexual relationship with her music 

teacher, Jeremy Anderson, since February of that year. The troopers were contacted, 

and an investigation ensued. Based on the results of that investigation, Anderson was 

indicted on fourteen counts of first-degree sexual abuse of a minor and two counts of 

second-degree sexual abuse of a minor.2

At the grand jury proceeding, K.H. testified regarding the nature and 

frequency of her sexual encounters with Anderson. K.H. testified that Anderson had 

started acting flirtatiously towards her in December 2013. Anderson’s “flirtation” 

continued, and the pair engaged in penetrative sexual activity for the first time in 

February 2014. K.H. testified that they engaged in such sexual activity around twenty 

to thirty times between February 2014 and early May 2014. The sex occurred on school 

grounds, generally in the choir room closet or the band room closet. Even though K.H. 

was below the age of sexual consent under Alaska law, she testified that she personally 

viewed the sex acts as “consensual.” She testified that the last time she and Anderson 

had sex, she told him she did not want to because she felt guilty, but Anderson pressured 

1

 AS 11.41.436(a)(1). 

2

 AS 11.41.434(a)(3)(B) and AS 11.41.436(a)(5)(B), respectively. 
– 3 – 2774 

her to have sex with him despite her initial unwillingness. (The later presentence report, 

which was based on K.H.’s investigative interview at the child advocacy center, 

contained additional indications that K.H. viewed the sex as coercive.)

During the pretrial proceedings, it became clear that the State intended to 

introduce various admissions of wrongdoing that Anderson had made to his wife, 

Jennifer Anderson, during the course of the investigation. In response, Anderson 

asserted his marital communications privilege under Alaska Evidence Rule 505(b) to 

exclude evidence of any confidential communications between himself and his wife.3

Jennifer Anderson also asserted her spousal immunity privilege under Evidence Rule 

505(a), and she separately asserted her own marital communications privilege under 

Evidence Rule 505(b).4

The superior court rejected these assertions of privilege. The court 

concluded that neither marital privilege applied at Anderson’s trial because his alleged 

sexual abuse of K.H. was a “crime involving domestic violence,” an express exception 

to the invocation of the privilege in a criminal proceeding.

5 We affirmed the superior 

court’s decision on interlocutory review, as we explain in more detail below.

6

Anderson subsequently entered into a plea agreement with the State. 

Under the terms of the agreement, Anderson pleaded guilty to one consolidated count 

of second-degree sexual abuse of a minor.7 He also agreed to a sentence of 30 years 

3

 Alaska R. Evid. 505(b). 

4

 Alaska R. Evid. 505(a)-(b). 

5

 Alaska R. Evid. 505(a)(2)(D)(v), (b)(2)(a). 

6 Anderson v. State, 436 P.3d 1071, 1077, 1080 (Alaska App. 2018). 

7

 AS 11.41.436(a)(1) (“An offender commits the crime of sexual abuse of a minor in 

the second degree if, . . . being 17 years of age or older, the offender engages in sexual 

penetration with a person who is 13, 14, or 15 years of age and at least four years younger 

than the offender[.]”). 
– 4 – 2774 

with 10 years suspended and a 15-year term of probation.8 The probation conditions 

were left open to the court. 

The presentence report included a factual narrative of Anderson’s offense, 

designated it a crime involving domestic violence, and proposed twenty-six special 

probation conditions. In a sentencing memorandum, Anderson objected to the domestic 

violence designation. Anderson separately filed several objections to the proposed 

probation conditions. 

At sentencing, the superior court imposed the agreed-upon sentence. The 

court modified several probation conditions in response to Anderson’s objections but 

left the domestic violence designation in place. 

Anderson now appeals the designation of his crime as a “crime involving 

domestic violence” in the presentence report and judgment. He also challenges several 

probation conditions.

Our decision in Anderson v. State

In Anderson v. State (Anderson I), this Court upheld the superior court’s 

determination that Anderson and his wife could not invoke the marital privilege 

exception at trial because Anderson’s alleged crime was a “crime involving domestic 

violence” as that term is defined in AS 18.66.990(3) and (5).9 Because Anderson asks 

us to overturn that holding, we explain our decision in Anderson I in more detail.

8

 Anderson agreed to three aggravating factors: that his conduct was among the most 

serious included within the definition of the offense (AS 12.55.155(c)(10)); that he was 

convicted of sexual abuse of a minor and was 10 or more years older than K.H. 

(AS 12.55.155(c)(18)(E)); and that the offense was a crime against the person and occurred 

on school grounds (AS 12.55.155(c)(32)). As part of his plea agreement, Anderson waived 

his right to a jury trial on these aggravating factors under Blakely v. Washington, 542 U.S. 

296 (2004).

9

 Anderson, 436 P.3d at 1077-80. 
– 5 – 2774 

In the litigation leading up to our decision in Anderson I, both Anderson 

and his wife attempted to invoke one or both of the marital privileges codified in 

Evidence Rule 505(a) (the spousal immunity privilege) and 505(b) (the confidential 

marital communications privilege).10 The superior court rejected these attempts on the 

grounds that the evidence rules prohibit application of either privilege in a criminal 

proceeding in which one spouse is charged with a crime involving domestic violence, 

and that Anderson’s alleged offense was a crime involving domestic violence as defined 

in AS 18.66.990.11

Alaska Statute 18.66.990(3) defines a “crime involving domestic 

violence” as including any crime against a person under AS 11.41 (which includes 

sexual abuse of a minor) if the crime is committed by one “household member” against 

another “household member.”12 Alaska Statute 18.66.990(5)(C) and (D) define 

“household member” to include “adults or minors who are dating or who have dated,” 

as well as “adults or minors who are engaged in or who have engaged in a sexual 

relationship.”

Based on K.H.’s grand jury testimony, the superior court ruled that 

Anderson and K.H. qualified as “household members” under AS 18.66.990(5)(C) and 

(D) because they had been engaged in a “sexual relationship” and had been “dating” for 

several months. The court therefore concluded that Anderson’s alleged sexual abuse of 

K.H. constituted “crimes involving domestic violence” for purposes of precluding the 

use of either marital privilege at Anderson’s criminal trial.

10 Id. at 1074; see also Alaska R. Evid. 505(a)(1) (“A spouse shall not be examined 

for or against the other spouse without the consent of the spouse to be examined.”); Alaska 

R. Evid. 505(b)(1) (“Neither during the marriage nor afterwards shall either spouse be 

examined as to any confidential communications made by one spouse to the other during 

the marriage, without the consent of the other spouse.”). 

11 Anderson, 436 P.3d at 1076; see also Alaska R. Evid. 505(a)(2)(D)(v), (b)(2)(A). 

12 AS 18.66.990(3)(A); see also 11.41.436(a)(1). 
– 6 – 2774 

The superior court’s rulings originally applied only to Anderson, because 

he was the first to raise the privilege issue. After the superior court denied his motion, 

Anderson petitioned this Court for review. We declined to exercise our power of 

discretionary review because the case was pending trial and Anderson had adequately 

preserved the issue for any future appeal. 

Following our denial, however, Jennifer Anderson filed her own motion 

in the superior court asserting marital privilege. After the superior court rejected 

Jennifer Anderson’s motion, she petitioned this Court for review. We granted review 

because we recognized that Jennifer Anderson’s rights as a witness-spouse could be 

adversely affected if we denied interlocutory review of her claim.13 

As we explained in Anderson I, “K.H.’s grand jury testimony [made] clear 

that, from K.H.’s perspective at least, she was engaged in a sexual or dating relationship 

with Anderson — a relationship that spanned many months and involved multiple 

intimate encounters, not all of which were sexual in nature.”14 In other words, there was 

no dispute in Anderson I that if K.H. had been an adult, her relationship with Anderson 

would qualify as dating or a sexual relationship for purposes of AS 18.66.990(5). 

But Jennifer Anderson argued that K.H. and Anderson were not dating or 

in a sexual relationship for purposes of AS 18.66.990(5) “because K.H. could not 

lawfully be in a sexual relationship with Anderson given their respective ages.”15 We 

rejected this argument for three main reasons. First, we explained that the underlying 

legislative intent of the 1996 legislation establishing the definition of a crime involving 

domestic violence “was to broaden the definition of domestic violence so as to ensure 

legal protections to all persons who were rendered particularly vulnerable by virtue of 

13 Anderson, 436 P.3d at 1077. 

14 Id. at 1078. 

15 Id. at 1079. 
– 7 – 2774 

their intimate relationship with their abuser.”16 Second, we noted that the legislature 

defined “household member” to include “adults or minors who are engaged in or who 

have engaged in a sexual relationship” — thereby suggesting that “a relationship 

between an adult and a minor can exist for purposes of extending legal protections to 

those minors.”17 And third, we were guided by the principle that because the marital 

privileges operate “to impede the normal truth-seeking function of court proceedings, 

they must be ‘strictly construed’ by the courts.”18

Judge Mannheimer dissented, arguing that because the law does not 

recognize a child’s ability to consent to sexual activity with an adult, a child cannot be 

in a “sexual relationship” with an adult as a matter of law.

19 Judge Mannheimer asserted

that this Court’s reasoning “implicitly rest[ed] on the notion that some children have 

the intellectual and emotional maturity to make a meaningful decision about [whether 

to engage in a sexual relationship with an adult].”20

16 Id.; see also SLA 1996, ch. 64, § 33; Sponsor Statement from Representative Sean 

R. Parnell, regarding House Bill 314 (Feb. 12, 1996). 

17 Anderson, 436 P.3d at 1079. We note that there are other “household member” 

definitions that are structured similarly and that clearly apply to adults and minors in 

relationship to one another. See, e.g., AS 18.66.990(5)(E) (“‘[H]ousehold member’ 

includes . . . adults or minors who are related to each other up to the fourth degree of 

consanguinity.”); AS 18.66.990(5)(F) (“‘[H]ousehold member’ includes . . . adults or 

minors who are related or formerly related by marriage.”). 

18 Anderson, 436 P.3d at 1075 (citing Daniels v. State, 681 P.2d 341, 344 (Alaska App. 

1984)). 

19 Id. at 1081 (Mannheimer, C.J., dissenting). 

20 Id. 
– 8 – 2774 

Why Anderson I was correctly decided

In this appeal, Anderson seeks to relitigate the same issue we decided in 

Anderson I, albeit in a slightly different context. Alaska Criminal Rule 32(e) provides 

that if the prosecution claims at sentencing that the defendant was convicted of a “crime 

involving domestic violence,” as defined by AS 18.66.990(3) and (5), the written 

judgment must “set forth whether the offense is a crime involving domestic violence” 

and “[a] factual and legal determination supporting this finding must be made on the 

record.”21

After receiving the presentence report, which stated that Anderson’s crime 

was a crime involving domestic violence, Anderson’s attorney objected to the 

designation. The sentencing court, relying on our decision in Anderson I, rejected

Anderson’s argument and included the domestic violence demarcation on the judgment.

Anderson now appeals the superior court’s decision to demarcate his 

crime as one of “domestic violence” in the presentence report and the judgment, arguing 

that a minor cannot legally engage in sexual activity with an adult, and therefore cannot 

be in a sexual relationship with an adult for purposes of AS 18.66.990(5). Although 

Anderson attempts to distinguish the present appeal from Anderson I on the grounds 

that it involves Alaska Criminal Rule 32(e), rather than the marital privilege exceptions 

contained in Evidence Rule 505, both rules rely on the same definitions provided in 

AS 18.66.990(5), and thus the issue Anderson raises is the same issue we already 

decided in Anderson I. 22 

21 Alaska R. Crim. P. 32(e). 

22 Id. Criminal Rule 32(e) provides: 

Judgment for Crimes Involving Domestic Violence. In a case in which the 

defendant is convicted of an offense listed in AS 18.66.990(3) and the 

prosecution claims at sentencing that the offense is a crime involving 

domestic violence, the written judgment must set forth whether the offense 

is a crime involving domestic violence as defined in AS 18.66.990(3) and 
– 9 – 2774 

Under the doctrine of stare decisis, an appellate court will overrule one of 

its prior decisions only when (1) the court is “clearly convinced that [its decision] was 

originally erroneous,” or (2) the court is convinced that its prior decision “is no longer 

sound because of changed conditions, and that more good than harm would result from 

a departure from precedent.”23

Anderson has not addressed the doctrine of stare decisis in his appellate 

briefing.

24 We acknowledge, however, that we denied Anderson’s original request for 

interlocutory review “because Mr. Anderson had adequately preserved the issue for any 

future appeal should this ruling materially affect the resolution of his criminal case.”25

We granted review only when it was requested by Jennifer Anderson, and Anderson 

did not file any appellate briefing in that case. Although this procedural history does 

not excuse Anderson’s failure to address the doctrine of stare decisis in the present 

appeal, which applies regardless of whether the current litigant was a party to the past 

litigation, we cannot ignore the obvious unfairness that would result if we refused to 

consider arguments we previously deemed “adequately preserved . . . for any future 

appeal.” We therefore take the time to address Anderson’s arguments and to explain in 

more detail why Anderson I was correctly decided.

Anderson’s primary argument on appeal is the same one articulated by 

Judge Mannheimer’s dissenting opinion in Anderson I: that because a child cannot 

(5). A factual and legal determination supporting this finding must be made 

on the record. 

23 State v. Fremgen, 914 P.2d 1244, 1245 (Alaska 1996) (quoting State v. Dunlop, 721 

P.2d 604, 610 (Alaska 1986)). 

24 See State v. David N.J., 19 A.3d 646, 669 n.34 (Conn. 2011) (declining to consider 

defendant’s arguments that a prior case was wrongly decided “in the absence of adequate 

briefing addressing the stare decisis considerations attendant to overruling” that case). 

25 Anderson, 436 P.3d at 1076. 
– 10 – 2774 

legally consent to sexual activity with an adult, a child and an adult cannot be in a 

“sexual relationship” for purposes of AS 18.66.990(5).26

We agree with Anderson that the phrase “sexual relationship” as used in 

AS 18.66.990(5) implies the existence of consent.

27 As the dissent pointed out in 

Anderson I, it would obviously be wrong to say that two people are in a “sexual 

relationship” when a man has held a woman captive and sexually assaulted her 

repeatedly over a number of days.28

The problem with this analogy, however, is that K.H. was not held captive. 

Rather, K.H. testified at the grand jury that she viewed all but her last interaction with 

Anderson as “consensual.” K.H.’s subjective belief that she was consenting is, of 

course, irrelevant for purposes of determining whether Anderson committed the crime 

of sexual abuse of a minor.29 But courts have often drawn a distinction between “legal” 

consent and “factual” (or “actual”) consent: legal consent refers to whether the law 

recognizes the victim’s ability to consent to sexual activity; factual consent refers to 

whether the victim subjectively believes they are consenting.

For example, the Supreme Court of Illinois has explained that, “[a]lthough 

juveniles may factually consent to intercourse, the law . . . treats them as incapable of 

giving legal consent.”30 Indeed, this Court itself has previously acknowledged this 

26 Id. at 1081 (Mannheimer, C.J., dissenting). 

27 Id. at 1083. 

28 Id. at 1082. 

29 See State v. Jackson, 776 P.2d 320, 328 (Alaska App. 1989) (“It is precisely because 

the law deems children to be incapable of rendering meaningful consent in such situations 

that the offense [of statutory rape] has been defined to make consent irrelevant.”). 

30 People v. Lloyd, 987 N.E.2d 386, 392 (Ill. 2013) (alteration in original) (quoting 

Russell L. Christopher & Kathryn H. Christopher, The Paradox of Statutory Rape, 87 Ind. 

L.J. 505, 515 (2012)). 
– 11 – 2774 

distinction, explaining that although the law provides that a minor cannot legally 

consent to sex with an adult, cases of statutory rape can “involve[] mutually consensual 

conduct.”31 Similarly, we have noted that “[s]exual penetration or sexual contact with 

a minor under the age of 16 is unlawful even if the minor initiates the sexual act and 

fully consents to it.”32

Federal courts have addressed this question most directly in the context of 

determining whether state convictions for statutory rape constitute a “crime of violence” 

for purposes of federal sentencing law. Discussing this topic, the Fifth Circuit wrote 

that “a 16 year old female can consent factually — if not legally — to sexual contact, 

thereby diminishing the likelihood that the offense will cause serious physical injury.”33

The Tenth Circuit similarly explained, “The absence of legal consent does not preclude 

the possibility, in the context of statutory rape, of factual consent.”34 And the Ninth 

Circuit held that although “the ‘non-consent of the victim’ is the ‘touchstone’ for 

[determining whether the defendant’s crime was a crime of violence], it is the victim’s 

actual non-consent that counts.”35

31 Jackson, 776 P.2d at 328. 

32 Miller v. State, 44 P.3d 157, 159 (Alaska App. 2002). 

33 United States v. Houston, 364 F.3d 243, 247 (5th Cir. 2004). 

34 United States v. Wray, 776 F.3d 1182, 1188 (10th Cir. 2015). 

35 Valencia v. Gonzales, 439 F.3d 1046, 1051 (9th Cir. 2006); see also Xiong v. INS, 

173 F.3d 601, 605-07 (7th Cir. 1999). We acknowledge that other federal circuit courts 

reached the opposite conclusion, holding that statutory rape is a “crime of violence.” With 

the exception of one circuit, however, the question of whether statutory rape was a crime 

of violence did not turn on the absence of the victim’s legal consent. Instead, the courts 

reasoned that the inherent power imbalance between the child victim and the adult 

perpetrator created a substantial risk of physical force. See Chery v. Ashcroft, 347 F.3d 404, 

407-09 (2d Cir. 2003); United States v. Velazquez-Overa, 100 F.3d 418, 421-23 (5th Cir. 

1996); United States v. Rodriguez, 979 F.2d 138, 141 (8th Cir. 1992); United States v. 

Reyes-Castro, 13 F.3d 377, 379 (10th Cir. 1993); Ramsey v. INS, 55 F.3d 580, 583 (11th 

Cir. 1995). But see Aguiar v. Gonzales, 438 F.3d 86, 90 (1st Cir. 2006) (holding that 
– 12 – 2774 

None of the cases cited above cast doubt upon the rule that a child cannot 

legally consent to sexual activity with an adult. What the cases make clear instead is 

that a child’s subjective consent may nonetheless be relevant to other legal questions. 

As we held in Anderson I, a child’s subjective consent is relevant to determining the 

existence of a dating or sexual relationship because the legislature’s underlying intent

in enacting the domestic violence moniker was “to broaden the definition of domestic 

violence so as to ensure legal protections to all persons who were rendered particularly 

vulnerable by virtue of their intimate relationship with their abuser.”36 

We think it clear that a child who believes they are in a consensual dating 

or sexual relationship with an adult is “rendered particularly vulnerable by virtue of 

their intimate relationship with their abuser.”37 Such a victim may become reliant on 

their abuser for financial and emotional support; may disclose intimate details about 

their personal life; may become invested in the continuance of the relationship; and may 

distance themselves from their existing support structure — all of which may make it 

more difficult for the victim to disclose the abuse to family, friends, or law enforcement 

officers. The fact that the minor cannot legally consent to the underlying sexual activity 

does not change the relationship’s impact on the minor’s life.

Anderson does not explain why his chosen definition of consent — i.e., 

legal consent — would be consistent with the legislative intent of protecting particularly 

vulnerable victims. Instead, Anderson repeats the assertion in Judge Mannheimer’s 

dissent in Anderson I that our reasoning “implicitly rests on the notion that some 

statutory rape is a “crime of violence” and explaining that its reasoning was based 

“primarily on the fact that, under the statute, a victim cannot legally consent to the 

prohibited conduct”). 

36 Anderson v. State, 436 P.3d 1071, 1079 (Alaska App. 2018). 

37 See id. 
– 13 – 2774 

children have the intellectual and emotional maturity to make a meaningful decision 

about [engaging in sexual activity with an adult].”38

This is not true. We have never suggested that children possess the 

intellectual and emotional maturity to make a meaningful decision about engaging in 

sexual activity with an adult. Our reasoning rests instead on the well-established fact 

that some children do make decisions about engaging in sexual activity with adults, 

even when they lack the intellectual and emotional maturity to do so, and on the sound 

policy judgment that a child who makes such a decision should be entitled to the same

protections as an adult. 

For all these reasons, we reject Anderson’s request that we overturn 

Anderson I.

39

We note that Anderson also argues that designating his conviction as a 

crime involving domestic violence on his judgment and presentence report “will 

mislead persons reading the document to believe this was a different sort of offense and 

may result in any number of misunderstandings and missed opportunities for 

rehabilitation.” Anderson further asserts that “it may be impossible for [him] to 

38 Id. at 1081 (Mannheimer, C.J., dissenting). 

39 Our decision in Anderson I was based on K.H.’s grand jury testimony. In his 

appellate brief, Anderson criticizes the superior court for not allowing the record to be 

further developed on remand. He notes that he requested an evidentiary hearing on this 

issue, and that the superior court denied it. To the extent Anderson is now arguing we 

should remand for an evidentiary hearing to determine if K.H. actually consented, we 

conclude that this issue was not preserved. Anderson’s request for an evidentiary hearing 

occurred shortly after Anderson I was issued and before Anderson pleaded guilty. When 

the superior court denied the request for an evidentiary hearing, the court stated that it 

would be willing to revisit the issue depending on how the evidence unfolded at trial. 

Anderson never renewed his request for an evidentiary hearing after he pleaded guilty, and 

although Anderson objected to the domestic violence designation in the presentence report, 

he did so only on legal grounds — the same grounds he now raises on appeal. 
– 14 – 2774 

participate in certain programs, reside at particular locations, or gain employment if 

there is a misleading ‘domestic violence’ designation on his record.”

Anderson’s argument captures a potential problem with the legislature’s 

broad definition of domestic violence when applied in certain circumstances. As this 

Court has previously acknowledged, “[T]he legislature’s definition of ‘domestic 

violence’ is worded so broadly that, if one were to read this definition literally, it would 

cover many instances where the specified relationship between the defendant and the 

victim is irrelevant to assessing whether the defendant is atypically dangerous or 

whether the defendant’s conduct is atypically blameworthy.”40 

For this reason, both this Court and the Alaska Supreme Court have 

acknowledged that the legislature’s broad definition may be limited by operation of 

other legal principles. For example, in State v. Tofelogo, our supreme court addressed 

the sentencing aggravator that a defendant’s crime was one of domestic violence and 

held that, although a court cannot ignore the plain language of the aggravator in 

determining whether it applies, a court may “give the aggravator less weight than it 

would have if the defendant had directed the crime against an intimate partner for 

purposes of intimidation or coercion.”41 Similarly, in Bingaman v. State, this Court held 

that even when a defendant’s prior act of domestic violence is admissible for propensity 

purposes under Alaska Evidence Rule 404(b)(4), courts must still determine whether

the evidence is admissible under Evidence Rule 403 — i.e., that its probative value is 

not outweighed by its unfairly prejudicial effect — before admitting the evidence at 

40 Tofelogo v. State, 408 P.3d 1215, 1217 (Alaska App. 2017), rev’d on other grounds 

in State v. Tofelogo, 444 P.3d 151 (Alaska 2019); see also Bingaman v. State, 76 P.3d 398, 

407-08 (Alaska App. 2003) (recognizing potential problems with the legislature’s broad 

definition of domestic violence); Carpentino v. State, 42 P.3d 1137, 1140-41 (Alaska App. 

2002) (same). 

41 Tofelogo, 444 P.3d at 158. 
– 15 – 2774 

trial.42 Alaska courts, in other words, have recognized that the legislature’s broad 

definition of domestic violence must sometimes be limited by the operation of other 

legal rules and doctrines when strict application would lead to unfair results. 

But Anderson has not identified any legal rule or doctrine that might limit 

the application of Criminal Rule 32(e) in this case. And he does not address the history 

or the purpose of the rule in his briefing. Moreover, Anderson has not pointed to any 

specific “programs” or “opportunities for rehabilitation” to which he would otherwise 

be entitled, but is likely to be denied because his crime has been designated as one of 

domestic violence. Nor has he pointed to any residences or employment usually 

available to a felon and convicted sex offender, but not available to someone convicted 

of a crime involving domestic violence. His concerns about the consequences of his 

designation remain wholly speculative given the seriousness of the underlying crime 

for which he has been convicted. 

We note that Alaska Criminal Rule 32(e) was enacted by the Alaska 

Supreme Court, not the legislature. In 1996, the same year that the legislature enacted 

its definition of “crimes involving domestic violence,” the legislature also expanded the 

definition of “serious offense” to include “crimes involving domestic violence,” 

broadening the information that a criminal justice agency could provide to an interested 

party.43 The Department of Public Safety then apparently contacted the court system, 

requesting that the court include a “domestic violence” demarcation on the judgment 

for each conviction.44 In response to this request, the Criminal Rules Committee drafted 

42 Bingaman, 76 P.3d at 413-14. 

43 See former AS 12.62.160(b)(10) (1996); former AS 12.62.900(23) (1996); see also 

SLA 1996, ch. 64, § 33. 

44 Letter from Del Smith, Deputy Commissioner of the Department of Public Safety, 

to Arthur Snowden, Administrative Director of the Alaska Court System, regarding 

changes to Alaska R. Crim. P. 32 (May 1, 1996). 
– 16 – 2774 

a new section to Criminal Rule 32 that eventually became Criminal Rule 32(e).45 Thus, 

it appears that the rule was intended primarily to facilitate the Department of Public 

Safety’s performance of a ministerial function.

Given Anderson’s failure to discuss the history and the purpose of 

Criminal Rule 32(e), his failure to identify a legal principle that might limit the 

applicability of the rule, and his failure to identify any specific opportunities that he 

might lose through application of the rule, we decline to deviate from a literal 

application of the rule in this case. 

Anderson’s challenges to his probation conditions

Anderson also renews several challenges to his probation conditions. The 

State concedes that several conditions should be remanded for reconsideration.46 We 

begin with the mental health conditions, about which the parties disagree, and then 

address the conditions which the parties agree require further proceedings. 

45 See Minutes of Criminal Rules Committee (Dec. 6, 1996); SCO 1289 (dated Sept. 

4, 1997; eff. Jan. 15, 1998); see also SCO 1464 (dated Mar. 5, 2002; eff. Mar. 5, 2002) 

(amending the rule to its current form). We note that the prosecutor must claim that the 

offense qualifies as a crime involving domestic violence in order to trigger application of 

the rule. See Alaska R. Crim. P. 32(e) (“In a case in which the defendant is convicted of an 

offense listed in AS 18.66.990(3) and the prosecution claims at sentencing that the offense 

is a crime involving domestic violence, the written judgment must set forth whether the 

offense is a crime involving domestic violence as defined in AS 18.66.990(3) and (5).”) 

(emphasis added); see also Alaska R. Crim. P. 3(d) (requiring the complaint to specify that 

the offense is a crime of domestic violence if “the prosecuting authority intends to claim 

that the alleged offense is a crime involving domestic violence as defined in 

AS 18.66.990(3) and (5)”); Alaska R. Crim. P. 7(c)(2)(D) (requiring the indictment to 

specify that a particular offense is a crime involving domestic violence if “the prosecution 

claims that the alleged offense is a crime involving domestic violence as defined in 

AS 18.66.990(3) and (5)”). 

46 Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to 

independently assess whether a concession of error “is supported by the record on appeal 

and has legal foundation”). 
– 17 – 2774 

First, Anderson challenges Special Conditions of Probation Nos. 14 and 

15, which require him to complete a mental health assessment and actively participate 

in and successfully complete all recommended programs, counseling, and treatment. 

Anderson contends that these conditions are invalid because the record is “void” of any 

mental health issues and the court was only speculating about the possibility that he 

suffered from an undiagnosed mental health condition. The State responds that, given 

the circumstances of Anderson’s arrest, a professional mental health assessment would 

further his rehabilitation and reintegration.

We conclude that the superior court could reasonably find that a mental 

health assessment was appropriate and reasonably related to Anderson’s rehabilitation. 

On the day Anderson’s criminal conduct was reported to law enforcement, he called his 

wife, told her he had an inappropriate relationship with a student, and threatened 

suicide. The next day, troopers found Anderson slumped over in a still running vehicle. 

There were pills and empty liquor bottles in and around the vehicle, as well as a note 

addressed to Anderson’s wife on the cupholder area. Anderson was unconscious and 

had vomited on the driver’s door and center console. Paramedics were called, and 

medical testing revealed oxycodone, benzodiazepines, and alcohol in Anderson’s 

blood. After his release from medical care, Anderson was briefly transferred to the 

Alaska Psychiatric Institute, and then arrested. Given these facts, the court did not abuse 

its discretion in concluding that a mental health evaluation to determine whether 

Anderson required further treatment was appropriate.47

Second, Anderson challenges Special Condition of Probation No. 9, which 

requires Anderson to provide to his probation officer “any and all [computer] passwords 

or access codes” in order to allow the probation officer to “monitor compliance with 

the court’s conditions of probation and promote rehabilitation.” Anderson contends that 

47 See Allen v. Anchorage, 168 P.3d 890, 895 (Alaska App. 2007) (reviewing 

conditions of probation for abuse of discretion). 
– 18 – 2774 

the requirement that he provide “any and all” passwords or access codes could be 

construed to require him to provide access information for his bank accounts and other 

sites that have no relation to his offense. He thus contends that the condition is overly 

broad and violates his right to privacy under the Alaska Constitution. 

The State agrees that, given Anderson’s right to privacy, this language 

must be narrowed. The State acknowledges that, while Anderson used his work email 

to converse inappropriately with K.H. prior to initiating a sexual relationship with her, 

he was not charged with any crime related to his use of the internet nor was there any 

indication that he viewed or purchased illicit materials or watched them with K.H.48

This condition also requires Anderson to submit to a search of his 

computer, residence, or vehicle at the direction of a probation officer “for the presence 

of communications with minors” (a provision to which Anderson agreed). Consistent 

with this requirement, the State suggests that any computer search in this case should 

be limited to monitoring whether Anderson is having any communications with minors 

and “accordingly limited to websites and apps that facilitate such communication.” The 

State also concedes that websites like those for banks should be excluded.49 

Accordingly, we remand Special Condition of Probation No. 9 to the 

superior court so that it may more narrowly tailor the provision requiring Anderson to 

48 According to the presentence report, in July 2013 (prior to the start of Anderson’s 

sexual relationship with K.H.), the school discovered a series of emails between Anderson 

and K.H. Some of the messages were school-related, but as time progressed, the emails 

became increasingly personal, including nicknames for one another. K.H. informed the 

school at that time that no sexual contact had occurred nor sexual photographs exchanged. 

The school district issued a written reprimand to Anderson, advising him that the 

“inappropriate behavior must stop.” 

49 In the superior court, the prosecutor argued that banking records could provide 

information about the purchase of illicit materials. But on appeal, the State concedes that 

there were no allegations that Anderson engaged in that type of conduct in this case, and 

thus, that such a restriction has an insufficient nexus to his offense. 
– 19 – 2774 

provide his passwords and access codes to the specific object of this condition — 

monitoring communications with minors.50

Third, Anderson challenges Special Condition of Probation No. 12, which 

prohibits him from knowingly having contact with a person under eighteen years old, 

unless in the immediate presence of a pre-approved adult who knows the circumstances 

of his crime. Anderson argues that, since K.H. was fifteen years old at the time of his 

offense, the age limit for this condition should be sixteen — the general age of consent 

in Alaska — rather than eighteen, and that the court failed to consider this less restrictive 

alternative. 

The State concedes that, upon Anderson’s objection in the superior court, 

the court left the condition unchanged but did not make findings as to why the condition 

was the least restrictive means of protecting the public and promoting Anderson’s 

rehabilitation. The State proposes that, on remand, the court amend this condition to 

restrict Anderson from “knowingly hav[ing] contact with a person under eighteen (18) 

years old over which he holds a position of authority, or any person under sixteen (16) 

years old,” unless in the immediate presence of a pre-approved adult. Because this 

appeal was filed as a sentence appeal under Appellate Rule 215, Anderson was not 

entitled to file a reply brief and has not had an opportunity to respond to the State’s 

specific proposal.51 We remand this condition for further consideration in light of the 

State’s proposed language. 

50 See Galindo v. State, 481 P.3d 686, 691 (Alaska App. 2021) (recognizing that when 

a probation condition implicates a defendant’s constitutional rights, a court must apply 

special scrutiny to ensure that the condition is “narrowly tailored to avoid unnecessary 

interference with the constitutional right at issue” and “affirmatively consider and have 

good reason for rejecting lesser restrictions”) (first quoting Glasgow v. State, 355 P.3d 597, 

600 (Alaska App. 2015); and then quoting Peratrovich v. State, 903 P.2d 1071, 1079 

(Alaska App. 1995)); see also Simants v. State, 329 P.3d 1033, 1038-39 (Alaska App. 

2014) (same). 

51 See Alaska R. App. P. 215(g)(3).
– 20 – 2774 

Fourth, Anderson challenges Special Condition of Probation No. 17:

The probationer shall not open or maintain an account with 

any internet provider, shall not participate in any social 

media accounts (examples include but are not limited to: 

dating sites, MySpace, Facebook, Instagram, Snapchat, 

Whatsapp, Twitter) and is expressly forbidden from 

accessing the internet from anyone else’s account, without 

the prior written permission of the Probation Officer, 

recognizing that some degree of access to the internet is 

necessary to reintegration into society. 

Anderson argues that making his internet access contingent on the 

probation officer’s discretion unduly restricts his First Amendment rights. The State 

concedes that the condition is overbroad and must be further tailored.

After Anderson’s sentencing, we addressed the propriety of a similar 

internet restriction in Dalton v. State.

52 In Dalton, we found that a complete internet 

ban, subject only to the unconstrained discretion of a probation officer, unduly restricted 

the defendant’s liberty, and we encouraged the trial court on remand to consider less 

restrictive alternatives to limit the defendant’s internet access in light of the “growing 

necessity of internet access for full participation in modern society, and for the 

rehabilitation of offenders.”53 Although we had previously affirmed such conditions,54

we recognized that dependence on the internet in daily life had grown considerably in 

the decade since those decisions, and what had previously been a substantial 

inconvenience, was now “an almost total hindrance to reentry into modern society and 

meaningful participation in public discourse.”55 We also noted that the internet had 

52 Dalton v. State, 477 P.3d 650, 652-56 (Alaska App. 2020). 

53 Id. at 654-56. 

54 See, e.g., Diorec v. State, 295 P.3d 409 (Alaska App. 2013); Dunder v. State, 2009 

WL 1607917 (Alaska App. June 10, 2009) (unpublished). 

55 Dalton, 477 P.3d at 655. 
– 21 – 2774 

played less of a role in Dalton’s offense than it had in the offenses addressed in our 

prior decisions, and we directed the court on remand to resume its consideration of less 

restrictive alternatives, including the possibility of allowing Dalton to open and 

maintain a single internet account, which would be subject to warrantless searches and 

probation officer monitoring.56

The State recognizes that Anderson’s use of the internet in this case was 

even more attenuated than in Dalton. Anderson used his work email — which was 

already subject to monitoring — to communicate inappropriately with K.H. over the 

summer, prior to initiating a sexual relationship with her. The State notes that the court 

attempted to narrow the condition by adding a provision regarding the importance of 

internet access — i.e., “recognizing that some degree of access to the internet is 

necessary to reintegration into society.” But the State nonetheless agrees that the court 

did not make sufficient findings to justify this condition as the least restrictive means 

of promoting Anderson’s rehabilitation. 

We therefore remand this condition for reconsideration in light of our 

decision in Dalton. The court should consider whether, and to what extent, an internet 

restriction is required in this case, given the facts of this case and Anderson’s 

rehabilitation needs. We note that Anderson’s other probation conditions already 

prohibit him from contacting minors and from possessing certain sexually explicit 

materials involving minors, and allow the probation officer to search his computer, 

electronic devices, residence, or vehicle for this prohibited material.

Finally, Anderson argues that Special Condition of Probation No. 4 — 

which provides that any recommended sex offender treatment “may include 

physiological and/or psychological testing, as well as other methods of ongoing 

assessment” — could be interpreted to include plethysmograph testing. We have 

56 Id. at 655-56. 
– 22 – 2774 

previously held that plethysmograph testing implicates privacy and liberty interests and 

thus necessitates application of special scrutiny.57

In this case, the superior court specifically stated that it was not 

authorizing plethysmograph testing. Anderson argues that the written judgment should 

reflect this oral pronouncement.58 The State agrees that the judgment should be 

amended to reflect the exclusion of plethysmograph testing.

As a general matter, if Anderson believed the judgment was unclear, he 

could have moved to amend the judgment in the superior court to reflect the oral 

pronouncement of sentence. But since the court clearly intended to exclude 

plethysmograph testing from Condition No. 4, and because we are remanding this case 

in any event, we direct the court on remand to amend the judgment to expressly reflect 

the exclusion of plethysmograph testing.

Conclusion

We REMAND this case to the superior court for reconsideration of 

Special Conditions of Probation Nos. 4, 9, 12, and 17, consistent with this opinion. We 

otherwise AFFIRM the judgment of the superior court. 

57 Galindo v. State, 481 P.3d 686, 691 (Alaska App. 2021). 

58 Cf. Graybill v. State, 822 P.2d 1386, 1388 (Alaska App. 1991) (“Where . . . a conflict 

exists between an orally imposed sentence and a subsequently issued written judgment, it 

is well settled that the oral pronouncement of a sentence must govern.”).